No, Congress can’t “fix” this problem short of a Constitutional Amendment. The USSC was the one that decided that money=speech based on their interpretation of the Constitution. In order to change that you have to have mostly new Justices, or an Amendment saying “Taint so.”
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Doesn’t a Constitutional Amendment begin with authorization by Congress? And that’s where they set terms for how long states have to decide on approval.
SCOTUS SCOTUS SCOTUS ad infinitum is the problem. The hideously longtime unknown wealthy and extremely successful
got what its primary donors wanted — and end to a polity wherein each individual citizen had an equal vote irregardless of wealth. They went for the obvious simple solution:
Money is speech is power.
Here, in our current political crisis, is their Victory unless “We, the people” wake up real damn fast.
AND, let me add, for formality’s sake, this claim:
At this level of macroeconomics, understanding raw power is the ultimate macroeconomics.
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I’ve seen arguments that corporations are defined by state law and states can change their laws to limit corporate political speech. No Congress or Supreme Court required That would lead to interesting competition among states.
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How would that work? Are states allowing to restrict speech in general?
DB2
There are several very specific legislative proposals with all the detail you want. Warren and Sanders have two different bills. California has a fully defined ballot initiative that’s collecting signatures. Washington State just signed a wealth tax into law. Other states specific proposals in various stages.
So there’s lots of detailed proposals out there, just like all legislative efforts.
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Corporations are artificial creations of individual states. They are defined by state law. There is no requirement for states to even allow corporations. They could change the law to eliminate corporations if they like. Is that murder?
The way to beat Citizens United does not require attacking the First Amendment (or even attacking Citizens United) ; it turns instead on harnessing the authority states have to confer powers on the artificial persons they create, because states never relinquished their ability to define and redefine (or even eliminate) the corporations that operate within their borders. The Supreme Court has long treated that authority as virtually absolute.
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Does that mean that states could change the laws to provide that corporations are prohibited from, say, advocating for gay rights? Or engaging in speech critical of the President? Or discussing climate change?
Remember, virtually all media in this country are published by corporations. Virtually every newspaper, every film, every movie, every play, every book - everything that reaches an audience of any size is produced or published or disseminated through a corporate entity. Do you really want a rule that says that the corporate form eliminates the protections of the First Amendment?
I share the opinion of some legal analysts who think that the government’s failure to enunciate a limiting principle on the speech restriction doomed them in Citizens United. Alito asked the Solicitor General if the government could ban political books if corporate spending were involved in their publication. The SG (essentially) said "Yes.” The government could ban books - political books! - if it wanted to. And that killed the government’s position.
It’s very hard to come up with a constitutionally significant distinction between the government prohibiting a corporation from engaging in political speech in the context of an election (say, a company running ads criticizing a candidate) and the government prohibiting a corporation from engaging in political speech any other time (say, a not-for-profit running ads criticizing the President’s position on climate change).
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Good points. The article I linked above about potential state laws has details about a CA proposal. It says the proposal talks about corporate powers and says
it would declare that “election activity authority” and “ballot issue activity authority” are not among those powers.
No idea how that wording relates to your concerns.
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It doesn’t. Alabama could adopt a rule that prohibits their corporations from engaging in speech that “presents homosexuality in a positive light,” which would then prohibit all the local affiliates that own television broadcast stations or bookstores or newspapers from publishing that kind of content. Or alternatively, Delaware could adopt a rule that prohibits corporations from that state from engaging in speech that “presents Republicans in a positive light,” effectively censoring from all media one of the major political parties. It could just say that such speech is not part of their corporate powers.
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I agree - CU foreclosed so many potential ‘reforms’ to a corporate takeover of elections. There may be a distinction between “compelled silence” and “definitional exclusion” as in that there’s a difference between the government telling an existing speaker/corporation to stop speaking (a First Amendment violation) and the government defining a new legal entity from the outset as one that simply lacks that capacity. This is analogous to how a state can create a public university with a mission limited to education and not require it to fund student political campaigns — not because political speech is unprotected, but because the entity was never empowered to engage in it.
The problem here, of course, is applying this to existing corporations, where the retroactive redefinition looks much more like a speech restriction than a charter condition.
Oh, well, other than a constitutional amendment, we’re screwed (which means we are screwed since we’re never going to get another one, at least for another generation or so).
Pete
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It’s not entirely analogous, though. A public university is (typically) an organ of the state. The state is allowed to decide what speech the state wants to engage in. In those contexts, the state is the speaker for First Amendment purposes - not a regulator of someone else’s speech.
I don’t think a state could impose conditions on the speech of not-for-profit corporations that operate private universities. If someone wanted to open a new private liberal arts college in a given state, the state couldn’t say that the private not-for-profit corporation that would run the new college was prohibited from using funds to teach anything negative about Republicans (for example). It’s a private actor, and states can’t prohibit private actors from promoting certain messages the same way the state can choose for itself not to spend its own money to promote certain messages.
Technically speaking is that already true? The 1st Amendment protects from “government speech prohibitions”. If Chick-Fila wanted to post signs saying “We are closed on Sunday so you can go to church”, would that be unconstitutional? If the government said they have to post that sign, clearly yes. If they did it on their own? I think not.
If someone wanted to open a new private liberal arts college in a given state, the state couldn’t say that the private not-for-profit corporation that would run the new college was prohibited from using funds to teach anything negative about Republicans (for example). It’s a private actor, and states can’t prohibit private actors from promoting certain messages the same way the state can choose **for itself** not to spend **its own money** to promote certain messages
Does the school take federal money? Different answer. Is it entirely private, funded only by private donors and tuition? Different answer, I think.
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Right - but that’s not the relevant comparison. If a state government revised their corporate laws to provide that corporations lack the power to post signs saying “We are closed on Sunday so you can go to church,” that would be almost certainly be unconstitutional. If a state can’t pass a law saying that a particular opinion or viewpoint is illegal to express, it seems unlikely they could do an end-around by simply amending the corporations code to say that no corporation had the power to express that opinion or viewpoint.
Or rather, the consequences of them being able to do that would be enormous. We don’t want the government to be able to censor movies or television shows - but every movie and television show (and book or newspaper of any material size) is produced and distributed through the corporate form using corporate funds. If the state’s power over corporations allows them to simply declare that certain speech is outside the power of the corporation to promulgate….well, there’s no limit to that.
The issue regarding money and politics is actually only one aspect of the issue of what modernity does to the functioning of democratic legitimacy (and legitimacy is the CRUX reason for modern democracy, as we have lost faith in god ordained monarchy and aristocracies, and dictators almost always become evil abominations).
Modernity is no friend of classic democracy. The roots of democracy lay in citizens themselves actually gathering together, not primarily to vote but rather to discuss and debate and so arrive at good policy. Modern supposedly democratic politics has lost this root experience of leaders emerging from intensive political discussion/debate of citizens, and instead “politics” is now an extremely bizarre sub-genre of consumerism, with political potentates putting forward candidates as products for potential consumption by consumer-citizens.
We need to actually grapple with rooting our politics in the lives of citizens within their communities.
The problem is old and now extremely rotten. Jefferson saw it early and at the end of his life grappled with how to push policymaking power down to small “ward republics”, envisioning this as the only process through which both democratic legitimacy and ground level policy making would produce (through small scale nitty gritty ground level experience) persons capable of national statesmanship.
See Jefferson’s letter to Joseph Cable of Feb 2, 1816 (Jefferson was nearing his end)
What has destroyed liberty and the rights of man in every government which has ever existed under the sun? the generalising & concentrating all cares and powers into one body, no matter whether of the Autocrats of Russia or France, or of the Aristocrats of a Venetian Senate. and I do believe that if the Almighty has not decreed that Man shall never be free, (and it is blasphemy to believe it) that the secret will be found to be in the making himself the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence by a synthetical process, to higher & higher orders of functionaries, so as to trust fewer and fewer powers, in proportion as the trustees become more and more oligarchical. the elementary republics of the wards, the county republics, the State republics, and the republic of the Union, would form a gradation of authorities, standing each on the basis of law, holding every one it’s delegated share of powers, and constituting truly a system of fundamental balances and checks for the government. where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs not merely at an election, one day in the year, but every day; when there shall not be a man in the state who will not be a member of some one of it’s councils, great or small, he will let the heart be torn out of his body sooner than his power be wrested from him by a Caesar or a Bonaparte.
Jefferson’s notions may not be the desired solution, but his description of the crux problem is learned and daunting.
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I would go further as say that size is the enemy of classic democracy. There is no way that 300+ million people can have a classic democracy. Which, of course, is why our form of government is a republic (representative democracy).
DB2
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Except he was wrong.
I’ve spent my career in the muck and mire of local government. The various “councils, great and small.” These folks are not the bulwark of democracy holding fast against the problems of modernity. They are delighted to hand over their power voluntarily to some Caesar or Bonaparte if it means that they can get more power by being a team player with the Caesar or Bonaparte at the lead. Or rather, they use their power in coordination with the Caesar or Bonaparte that heads up their “team” so that they can all get more powerful together. Politics is a team sport.
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Excellent explanation.
Just left one part out: Step 3: Die and Pass Assets Tax Free to Heirs
In effect establishing a monied aristocracy/oligarchical class within the USA.
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Corporations are not people. They cannot write books, political or otherwise. They can employ writers who could, of course.
I suspect there is a clever lawyerly way to write a law that in essence says a corporation can advertise their wares, but they have no write to political or other speech beyond that. Because they aren’t people.
And money isn’t speech, either. If we accept that money is speech, then that means that Elon Musk (or any rich person) has a right to more speech than I do because he is richer than I am. And he doesn’t.
Heck. I was paid by a corporation. Publicly traded. If I went on TMF back in the day and started spouting about my company (free speech!!), the SEC would have probably been very upset. So, even as an employee of a corporation, I couldn’t write anything I wanted in a public forum. Not without possibly going to prison.
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